Gittin 28b (כח:) — the Talmud in English

Rava said

to resolve the contradiction between the Mishna and the beraita: The law of our Mishna differs from that of the beraita concerning the statement, “This is your bill of divorce one hour before my death.” In our Mishna, the concern is that perhaps the husband has already died, and

we are not concerned

with

the possibility that he has died!

because we establish him according to his presumptive status, that he is still alive.

But in the beraita, even if he has not yet died, but will die in another hour, the divorce takes effect retroactively from now, and she immediately becomes prohibited from eating teruma; therefore,

we are concerned that perhaps he will die!

For we are not saying that he has already died, thereby undermining his presumption of life; rather, we are concerned that he will die in the future.

Rav Adda bar Mattana understood from Rava’s words—which indicate that he disagreed with Abaye, who had explained that the Mishna and the beraita reflect the dispute between Rabbi Meir and Rabbi Yehuda concerning the wineskin—that in Rava’s view both the Mishna and the beraita follow the opinion accepted by all; therefore:

He said

and challenged

Rav Adda bar Mattana to Rava:

But what of the wineskin

the wine, regarding the bursting of which Rabbi Meir was not concerned,

for

it is

analogous to the possibility that he will die,

since if it bursts in the future, after he has separated teruma from it, the teruma will be invalidated retroactively?

And

nevertheless

Rabbi Meir and Rabbi Yehuda disagree

about this! We may conclude from here that Rabbi Meir is not concerned even about the possibility that he will die. How, then, can the beraita be explained according to his opinion?

He said [

he replied]

Rav Yehuda of Diskarta:

The case of the wineskin is different,

as to why Rabbi Meir was not concerned that it might burst, because it is possible

to give it to a guardian

to watch it so that it will not burst. But concerning “perhaps he will die,” even Rabbi Meir is concerned.

Rav Mesharsheya raised an objection to him:

What benefit does giving it to a guardian provide in removing the concern that it will burst? After all,

your guarantor himself requires a guarantor [

the guarantor whom you brought also requires a guarantor; this is a metaphor: Even the guarantor himself, who is responsible for ensuring that the borrower pays his debt, requires another person to guarantee that he will fulfill his own guarantee].

That is to say: One must be concerned that perhaps the guardian himself will neglect his duty of guarding it, and the wineskin will burst.

Rather, Rava said:

Indeed, one cannot say that both the Mishna and the beraita reflect the opinion accepted by all. Rather:

We are not concerned that perhaps he has died,

even according to Rabbi Yehuda, who is concerned that the wineskin may burst; therefore, our Mishna is properly explained according to everyone.

But if we are concerned about

the possibility that he will die,

it is a dispute among

tannaim!

Rabbi Meir is not concerned even about this, whereas only Rabbi Yehuda is concerned about it; and the beraita was taught in accordance with his opinion.

We learned in the Mishna:

One who sends his sin-offering from overseas,

it is sacrificed on the presumption that he is alive:

And we raise a difficulty:

But

with regard to a sin-offering,

we require the laying of hands

by the owner of the offering upon the head of his offering. If so, how can he send his sin-offering by means of an agent?! After all, it is impossible for the agent to perform the laying of hands in his place, as it is taught in the Torat Kohanim: “‘And he shall lay his hand’”—and not the hand of his agent!

He said

and replied,

Rav Yosef:

What are we dealing with here?

With an offering,

a sin-offering belonging to

women,

and women do not perform the laying of hands, because it is stated: “Speak to the children of Israel, and he shall lay his hand, etc.” The children of Israel perform the laying of hands, but women do not perform the laying of hands.

Rav Pappa

replied and

said:

Our Mishna is dealing

with a bird sin-offering,

which does not require the laying of hands; therefore, he can send it by means of an agent.

Here the Gemara returns to the three cases mentioned in our Mishna, in which a person is maintained in the presumption of being alive:

a. One who brings a bill of divorce, and the agent left the husband when he was elderly or ill, gives it to the woman on the presumption that her husband is alive!

b. An Israelite woman married to a kohen, whose husband went overseas, may eat teruma on the presumption that he is alive! c. One who sends his sin-offering from overseas: It is sacrificed on the presumption that he is alive—

And

the Gemara explains that

it is necessary

for our Mishna to teach this novel ruling in all three cases; and the reason is:

Had it taught us

with regard to

a bill of divorce

alone that we are not concerned that the husband has died, I would have said that this law applies specifically to a bill of divorce,

because it is impossible

to divorce a woman whose husband is overseas unless we rely on his presumption of life.

But

with regard

to teruma, since

even if we prohibit the woman from eating it,

it is possible

for her to subsist by eating non-sacred food,

I would say that we do not

rely on the presumption, and we are concerned that the husband has died.

And had it taught us

with regard to

teruma

that we are not concerned that the husband has died, I would have said that this law applies specifically to teruma, because

at times it is impossible

for the woman to subsist without eating teruma—for example, when she is poor and all her sustenance comes from the teruma she receives at the threshing floors.

But

with regard to

a bird sin-offering,

I might say:

Because of the uncertainty,

he should not bring [

we do not permit him to bring]

non-sacred animals into the Temple courtyard!

For if he has died, the sin-offering is unfit for sacrifice.

Therefore,

it is necessary

for our Mishna to teach, with regard to all three of these cases, that the person is maintained in the presumption of being alive.

Mishna:

Rabbi Elazar ben Parta stated three matters

before the Sages, and they upheld his words [

they agreed with these rulings]!

And these are they:

a.

Concerning a city surrounded by a siege [

a siege by the enemy] with people inside it.

b.

And concerning a ship being tossed about at sea,

which has not yet sunk and has people inside it.

c.

And concerning a person going out to be judged

before a court for an offense punishable by death, when his judgment has not yet been finalized for execution—

For

all these people, although they are in mortal danger, as long as we do not know what ultimately became of them,

are presumed to be alive!

And if they are kohanim, their wives are permitted to eat teruma, and we are not concerned that their husbands have died.

Similarly, with regard to a bill of divorce, if one of them gave a bill of divorce to an agent, and before the agent delivered it to the woman the husband entered one of these life-threatening situations, the agent should deliver it to the woman.

But a city that

has already

been conquered by the siege [

the enemy that besieged it], we are concerned about the people inside it, that perhaps they have died.

And

similarly,

a ship that

has already

been lost at sea,

we are concerned about the people inside it, that perhaps they have died.

And

similarly, one whose judgment has already been finalized for death, and he is

going out to be executed—

These people are not presumed alive; rather, they are of uncertain status, possibly alive and possibly dead. Therefore,

we impose upon them the stringencies of the living and the stringencies of the dead!

Thus, if

an Israelite woman

married

to

one of them who is a

kohen,

she may not eat teruma, because we are concerned that he has died, in which case she is prohibited from eating teruma.

And

conversely, if

a kohen’s daughter

is married

to

one of them who is an

Israelite,

she too

may not eat teruma!

Because we are concerned that perhaps her Israelite husband has not died; and as long as she remains married to him, her status is that of an Israelite, and she may not eat teruma.

Gemara:

We learned in the Mishna: And one who is going out to be executed—we impose upon him the stringencies of the living and the stringencies of the dead!

Rav Yosef said:

They taught

in our Mishna that one who is going out to be executed is considered only possibly dead

but

with regard to one going out to be executed

by an Israelite court!

The reason is that even after his judgment has been finalized, if the court discovers an argument in the defendant’s favor, they reconsider the case and exempt him from execution. Therefore, as a stringency, we are concerned that he may still be alive.

But

one going out to be executed

by a gentile court,

is considered certainly dead, and even as a stringency we are not concerned that he may still be alive.

Because

once his judgment has been finalized for execution, they execute him!

After they have finalized his judgment for execution, they do not reconsider it, and certainly kill him in the end.

Abaye said to him:

But

a gentile court as well

sometimes reconsiders the case and acquits the defendant, because

they accept bribes [

bribes] in order to acquit him! If so, even in the case of one going out to be executed by their court, one should be concerned and act stringently that he may still be alive.

He said to him,

Rav Yosef:

When they take [

when do they accept bribes?]—only

before the verdict, called “fursi shenmag,” has been signed! [

before the final judgment has been signed; “fursi shenmag” is a verdict in the Persian language].

But

after the “fursi shenmag” has been signed, they do not accept bribes,

the gentile judges do not accept bribes! In such a case, it is certain to us that he was ultimately killed.

He raised an objection

to Rav Yosef from the following Mishna:

If a person whose judgment had been finalized by a court for execution escaped:

Wherever two people stand and say: We testify concerning so-and-so, whose judgment was finalized

for execution

in the court of so-and-so; and so-and-so and so-and-so

are

his witnesses,

who testified against him in that court that he committed an offense punishable by death—

he is executed

by this court! Although this court did not hear the testimony of the witnesses to the offense, it relies on the fact that his judgment was already finalized by the other court.

We have therefore learned that we are not concerned that perhaps the court found an argument in his favor after his judgment was finalized and acquitted him, because such a thing is not common. This is difficult for Rav Yosef!

And we answer:

Perhaps one who escaped is different!

Since he escaped from the place where he was sentenced to death, this proves that his final judgment still stands and that he was not acquitted of the death penalty.

Come and hear

a refutation of Rav Yosef from the following beraita:

If

he heard

a witness

from

the mouth of

an Israelite court, which was saying:

“So-and-so has died,”

a death of his own making because he committed an offense: They did not kill him directly, but placed him in a cell until he died on his own—for example, he committed an offense punishable by lashes, was flogged, committed the same offense again and was flogged for it, and when he committed it a third time, they placed him in a cell.

Or if he heard them say:

“So-and-so was executed,”

by one of the four forms of execution imposed by a court—

Although he is not testifying to the death itself,

they may marry off

this so-and-so’s wife on the basis of his testimony! We are not concerned that he may still be alive and that she remains a married woman.

But if the witness heard

from the executioners [

those appointed to execute people sentenced to death]

of the gentiles,

who said:

“So-and-so has died”!

For example, he was sentenced under royal law to be confined in a chamber filled with dirt until he died on his own—or if they said:

“So-and-so was executed” —

they may not marry off his wife

on the basis of this testimony.

But

what does “

died” mean,

and what does “

was executed” mean,

as the beraita teaches?

If you say that

“

died”

means that he heard them say

that he actually died, and

similarly, “

was executed”

means that they said that he

was actually executed,

and his sentence had already been carried out, and it is in this sense that it says that if he heard this from an Israelite court, they may marry off his wife—

This cannot be said, because:

For

if so,

similar to this [

similar to this case]

with regard to

a witness from gentile executioners who

are gentiles—

who told him that he had already died or had already been executed—

why does the beraita teach that

they may not marry off his wife!!?

And

we have an established ruling: Anyone who reports

a gentile

in the course of casual conversation

that the husband of a certain woman has died,

we rely on him [

we believe him] and marry her off on his testimony. Since he does not know that we rely on him to permit the woman to remarry, and he is not making the statement as testimony but merely relating an event, he is not suspected of lying.

Rather, is it not

necessarily the case that “

died”

means that he heard them say that his judgment had been finalized and that he was

going out to die, and similarly, “

was executed”

means

that he was

going out to be executed, and they did not see him actually die or be executed?!

And nevertheless the beraita teaches that if he heard this

in a court

of

Israel, they may marry off his wife!

This proves that we are not concerned that after his sentence was issued, the court found an argument in his favor and released him from execution. This is difficult for Rav Yosef!

And we answer:

In fact,

we are dealing with a case where he heard from them

that he actually died, and

likewise he heard that he

was actually killed,

and only in this manner do we permit his wife to marry.

And as for what you said

to object:

that

if so,

similarly, regarding gentiles, why not

marry off his wife?

But we have established

that

anyone who speaks innocently is entirely trustworthy!?

This is not difficult, for

these words apply

when a gentile is trusted in testimony concerning a woman when he speaks innocently—that is only

in a matter with which he has no connection!

They have no connection to this incident and do not take pride in it.

But in a matter with which they are involved,

and take pride in having executed a person in their court, they are not trustworthy, because

they act to reinforce their lie

[They may lie and say that he has already been executed, even though they saw him only standing trial in a capital case].

There are those who say: Rav Yosef said: They taught

this with regard to one who is being led out to execution—meaning that we impose upon him the stringencies of the living and the stringencies of the dead—

only

when he was sentenced to death

in a gentile court!

For as long as he has not been executed, there remains the possibility that he will bribe the judges and they will acquit him.